Colorado Court of Appeals decisions 6-10-10

People v. Trujillo  Hearsay / 13-25-129

The Court of Appeals found that C.R.S. §13-25-129 (Child Hearsay Statute) allows for admission of hearsay statements from kids over 15.

People v. Roy  Time Served – 35(a) Motion or 35(c) Motion?

The Court of Appeals held any motion for additional credit time served falls under C.R.Crm.P Rule 35(a), not 35(c). Thus, the time bars contained in Rule 35(c) do not apply to motion for credit time served.

People v. Portillo  Lesser Included Offenses – Menacing Lesser Included of Attempted Extreme Indifference First Degree Murder?

The Court of Appeals held that because menacing requires proof of an element not contained in attempted extreme first-degree murder, menacing is not a lesser-included offense.

People v. Griffiths  Ability to Pay and Drug Surcharge / Res Gestae Evidence

The Court of Appeals held that because Ms. Griffiths did not claim at her sentencing that an 11-year DOC sentence would prevent her from paying the drug offender surcharge, the trial court did not abused its discretion in imposing the surcharge. Further, the Court also held that introduction of Ms. Griffiths physical appearance, scanners from her home, and a notebook did not violated the trial court’s order barring any evidence pursuant to 404(b).

People v. Emert  Advisement under Curtis and Possession of a Weapon by a Previous Offender

The Court of Appeals held that the Curtis advisement given by the trial court misled Mr. Emert into believing the only purpose of the previous felony was to impeach him. Moreover, the Court held that in a POWPO trial, the trial court must also advised the defendant that the prior felony will be used against him because the prior felony is an element of the crime of POWPO.

People v. Bloom  Summary Disposition of Appeal

The Court of Appeals held that Mr. Bloom did not have a right to appleal his sentence because the trial court sentenced Mr. Bloom within the range allowed by the plea bargain. The Court dismissed the appeal without an answer brief.

People v. Blackwell  Prosecutorial Misconduct by Threatening a Witness with Perjury / Fair Trial

The Court of Appeals came up with a totality of the circumstances test to determine if the prosecution, in threatening perjury charges, deprived Mr. Blackwell of a fair trial. Unsurprisingly, no, the prosecution’s threat did not undermine Mr. Blackwell’s right to a fair trial. The factors the Court of Appeal came up with:

(1) the manner in which the prosecutor raises the issue, including the warnings' extent and timing, the language employed, and whether the prosecutor communicated directly with the witness or through an attorney;

(2) the  prosecutor's basis in the record for believing the witness might lie;

(3) the warnings' effect on the witness's willingness to testify;

(4) whether the court attempted to remedy any misconduct; and

(5) whether the prosecutor capitalized on the witness's absence by directing the jury's attention to it during closing arguments.

People v. Alvarado-Juarez  Equal Protection - Extreme Indifference First Degree Murder and Reckless Manslaughter

The Court of Appeals held the Extreme Indifference statute did not deny Mr. Alvarado-Juarez equal protection “because there is a significant difference between the elements of extreme indifference murder and reckless manslaughter: extreme indifference murder requires proof of  ‘circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally.’” Whereas, the Court reasoned, reckless manslaughter does not contain the universal malice element.  The Court also found Colorado’s reasonable doubt instruction is fine thank you very much. Actually, of all the definitions, Colorado states the definition best.